TRANSITION SERVICES AGREEMENT
EXHIBIT
10.3
This
TRANSITION SERVICES AGREEMENT (this “Agreement”), dated as
of April 7, 2009, to be effective as of 11:59 PM CDT March 31, 2009 (the “Effective Date”), is
entered into by and between SemGroup Energy Partners, L.P., SemGroup Energy
Partners, L.L.C., SemGroup Crude Storage, L.L.C., SemPipe G.P., L.L.C. SemPipe,
L.P., SemMaterials Energy Partners, L.L.C. and SGLP Asphalt L.L.C.
(collectively, “Service Recipient”),
and SemCrude, L.P., SemGroup, L.P., SemMaterials, L.P. and SemManagement, L.L.C.
(collectively, “Service
Provider”). Service Provider and Service Recipient are
hereinafter collectively referred to as the “Parties” or
individually, as applicable, as the “Party.”
W
I T N E S S E T H
WHEREAS,
Service Provider and Service Recipient have entered into a Master Agreement,
dated as of the date hereof (the “Master Agreement”),
pursuant to which, among other things, Service Provider will provide certain
services for Service Recipient’s operations (the “Service Recipient
Business”) for a limited transition period;
WHEREAS,
after the date hereof, Service Recipient will operate the Service Recipient
Business independently of the Service Provider’s other operations (the “Service Provider
Business”);
WHEREAS,
Service Recipient desires Service Provider to provide Service Recipient with
certain transition services related to the Service Recipient Business, which are
more particularly described on Exhibits A, B, C and
D hereof (the
“Services”);
and
WHEREAS,
the Parties will pay for transition services and expenses in accordance with the
terms hereof on a basis reasonably related to cost of services
rendered.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
SECTION
1. DEFINITIONS.
Unless
otherwise expressly noted, the words “hereof,” “herein,” “hereunder,” and words
of similar import shall refer to this Agreement as a whole and not to any
particular section, subsection or clause of it, and references herein to an
exhibit, schedule, section, subsection, or clause shall refer to those of or in
this Agreement. The meanings of terms defined herein shall be equally
applicable to both the singular and plural forms of those terms.
SECTION
2. SERVICES.
(a) Subject
to the terms and conditions hereof, during the Term (as hereinafter defined),
Service Provider shall provide to Service Recipient the Services set forth in
Exhibits A,
B, C, and D
hereof.
(b) As may be
required or at its option, and after receiving the written consent of Service
Recipient, which shall not be unreasonably withheld, conditioned or delayed,
Service Provider may cause any Service outlined hereunder to be provided by any
third party (an “Outsourced
Service”). Service Recipient hereby consents to any Outsourced
Services that are in existence as of the date hereof. Notwithstanding
anything to the contrary contained herein, Service Provider will not be
responsible for the quality of any Outsourced Service so long as Service
Provider reasonably selects the provider of such Services. In the
event an Outsourced Service provider commits a breach of an Outsourced Service
agreement that has, or in the reasonable judgment of Service Recipient has the
potential to have, a material adverse impact on Service Recipient, Service
Provider shall use commercially reasonable efforts to enforce any claims and
pursue any rights or remedies Service Provider may have against the Outsourced
Service provider for such breach or potential breach in the same manner with
which Service Provider seeks to enforce such a claim or pursue such rights or
remedies in respect of such a breach or potential breach adversely affecting
Service Provider. Service Provider shall use commercially reasonable
efforts to have Service Recipient be a third party beneficiary of any rights or
remedies Service Provider may have against the Outsourced Service provider for
any breach arising from or relating to any Outsourced Service. For
greater clarity and subject to Section 11, nothing
in this Agreement shall be interpreted as to relieve Service Provider from any
of its obligations hereunder, including its obligation to provide the Services
it is required to provide hereunder.
(c) Notwithstanding
any other provision of this Agreement and without limiting the rights of Service
Recipient for a breach of Service Provider of its obligations under this
Agreement, Service Recipient shall have exclusive control and decision making
authority with respect to the Service Recipient Business and shall be
responsible for ensuring that the Service Recipient Business is in compliance
with all Applicable Laws. Service Provider shall not be responsible
for any Liabilities arising from (i) Service Provider’s compliance with any
instruction, direction or parameter given by Service Recipient or any constraint
imposed by Service Recipient or (ii) Service Recipient’s decision to not
implement any actions recommended by Service Provider in connection with its
provision of Services to Service Recipient.
SECTION
3. FUNDING OF
EXPENSES.
The
Parties agree that Service Recipient will accrue for and pay its direct expenses
related to the Service Recipient Business, including, without limitation,
licensing, registration fees, taxes, surety bonds, legal fees, auditing fees and
other outside vendors with whom Service Recipient contracts; and the expense
allocation payable under Exhibits A, B, C, and D
hereto. Service Provider further agrees that it will apportion or
chargeback any expenses at the end of each month, or any other applicable
billing period, and will not true up any such expenses to Service Recipient at
the end of any fiscal year.
SECTION
4. TERM AND
TERMINATION.
4.1 Term. Exhibits A, B, C, and D specifically
outline the term for which Services will be provided (the “Term”).
2
4.2 Effect of
Termination. Each Party’s obligations to perform with respect
to the particular Service or Services provided to or by it hereunder shall end
as of the effective date of its termination in accordance with this Agreement;
provided, however, that each
Party shall remain liable to the other as provided for hereunder with respect to
(a) any obligations accruing under this Agreement prior to the effective date of
such termination, or (b) as otherwise provided in this
Agreement. Notwithstanding anything in this Agreement to the
contrary, Sections
4.2, 9,
10 and 13 shall survive the
expiration or termination of this Agreement.
SECTION
5. COMPENSATION, PAYMENT AND
AUDIT REVIEWS.
5.1 Payment
of Service Fees to Service Provider. In consideration for
Service Provider providing the Services to Service Recipient, Service Recipient
shall pay Service Provider the Service Fees in accordance with Section 5.3
below.
5.2 Service
Fees.
(a) Not later
than fifteen (15) days following the end of each month, Service Provider shall
deliver to Service Recipient a statement (the “Monthly Statement”)
that details the actual cost allocable, to the extent applicable, for Services
to Service Recipient for that month as set forth on Exhibits A, B, C and
D (the “Service
Fees”). Acceptable forms of delivery for the Monthly Statement
include facsimile, electronic mail, postal mail and hand delivery.
(b) Service
Recipient shall have the right to review the supporting documentation for such
Monthly Statement pursuant to Section 5.4 and
Service Recipient shall have thirty (30) days after its receipt of the Monthly
Statement to deliver a written notice to Service Provider (the “Dispute Notice”)
setting forth the items in dispute in reasonable details (the “Disputed
Items”). During the thirty (30) day period following delivery
of the Dispute Notice (the “Resolution Period”),
the Parties will use commercially reasonable efforts to reach agreement on the
Disputed Items set forth in the Dispute Notice. If the Parties are
unable to reach an agreement during the Resolution Period, then they will
appoint a mutually acceptable independent party to review the Dispute Notice and
determine the final amount of the Disputed Items. If the Parties are
unable to agree on a single independent party within fifteen (15) days after the
end of the Resolution Period, then the Parties will each appoint one (1)
independent party, who will jointly select a third independent party (singly or
collectively, the “Referee”), within
thirty (30) days after the end of the Resolution Period. The Referee
shall deliver its determination to the Parties within thirty (30) days from the
date of its engagement. The Referee’s report shall be final and
binding upon the Parties. The cost of the Referee’s engagement and
report shall be shared fifty percent (50%) by Service Provider and fifty percent
(50%) by Service Recipient. Notwithstanding anything herein to the
contrary, Service Provider shall continue providing Services during such time as
a dispute exists and nonpayment by Service Recipient of any Disputed Items that
are outstanding in accordance with this Section 5.2(b) shall
not constitute a breach of this Agreement.
(c) In
accordance with Service Provider’s normal practices as of the date hereof,
Service Provider shall maintain reasonably complete and accurate records of and
supporting documentation for all non Fixed Fee charges and costs and all other
data and/or information created, generated, collected, processed or stored by
Service Provider in connection with the provision of the Services as provided
for in this Agreement (collectively, the “Service
Records”). Service Provider shall retain the Service Records
in accordance with Service Provider’s record retention policy; provided, that
Service Provider will retain records for a minimum of the term of this
Agreement. In the event of the termination of any Service provided by
Service Provider under this Agreement, Service Provider shall provide to Service
Recipient at Service Recipient’s request and cost a copy of all Service Records
pertaining to such terminated Service to the extent not previously provided
under Section
5.4.
3
5.3 Payments
of Service Fees by Service Recipient. Service Recipient
shall pay all Service Fees promptly, but no later than fifteen (15) days after
its receipt of the Monthly Statement to which such Service Fees apply, via wire
transfer of immediately available funds into a bank account designated by
Service Provider, except for Disputed Items that remain outstanding in
accordance with Section 5.2(b) of
this Agreement. If Service Recipient disputes any portion of a
Monthly Statement, Service Recipient must pay the undisputed
portion. Overdue amounts that are resolved in favor of Service
Provider will accrue interest at the one-month London Interbank Offered Rate
from the date that payment is due until paid in full. If overdue
amounts are resolved in favor of Service Provider, then Service Recipient will
pay all of Service Provider’s reasonable, out-of-pocket costs (including
reasonable attorney’s fees) of collecting past due payments and late payment
charges; provided, however, that the
Parties will share the costs of a Referee in accordance with Section
5.2(b). If overdue amounts are resolved in favor of Service
Recipient, then Service Provider will pay all of Service Recipient’s reasonable,
out-of-pocket costs (including reasonable attorney’s fees) of defending itself;
provided, however, that the
Parties will share the costs of a Referee in accordance with Section
5.2(b). Any Disputed Items shall be resolved in accordance
with Section
5.2(b) of this Agreement.
5.4 Audit
Review. Upon the request
of Service Recipient for an audit, Service Provider agrees to afford Service
Recipient’s accountants (and internal and external auditors, inspectors,
regulators and other representatives that Service Recipient may designate from
time to time) reasonable access, during normal business hours and upon
reasonable notice during the Term, to the Service Records, and shall furnish
promptly such information concerning the Services and the Service Fees as
Service Recipient’s accountants (and internal and external auditors, inspectors,
regulators and other representatives that Service Recipient may designate from
time to time) reasonably request; provided, however, that such
investigation shall not unreasonably disrupt Service Provider’s
operations. Service Recipient will be limited to one (1) audit review
for the entirety of the Term of this Agreement, provided, however, if Service
Recipient has a reasonable business need for one (1) additional audit review,
Service Provider will facilitate one (1) additional audit review to the extent
the request is reasonable. Notwithstanding any provision of this
Article V to
the contrary, Service Recipient and its internal and external auditors,
inspectors, regulators and other representatives shall not be given access to
(i) the proprietary information of customers of Service Provider or (ii) Service
Provider’s facilities that are not related to the provision of the
Services. Each Party will be responsible for its own costs associated
with any audit activity pursuant to this Section
5.4.
4
5.5 Notification
and Disclosure Matters. Service Provider will notify Service
Recipient within forty-eight (48) hours regarding any issues pertaining to
Service Recipient in accordance with the disclosure procedures in place as of
the date hereof.
SECTION
6. TAXES.
Service
Recipient shall pay all applicable sales and use taxes required to be paid on
Services provided to Service Recipient that may be due or become due in
connection with Service Provider’s performance of the
Services. Service Provider shall reasonably cooperate with Service
Recipient in order to permit Service Recipient to establish any exemption from
or reduction to, or obtain any credit or refund of, any such sales and use
Taxes.
SECTION
7. PURPOSE.
7.1 Rights
and Obligations. The Parties hereby enter into this Agreement
for the purpose of setting forth their respective rights and obligations
relating to (i) the furnishing of Services and (ii) the sharing of costs
associated therewith between Service Provider and Service
Recipient.
7.2 Nature of
the Relationship.
(a) The
relationship of the Parties under this Agreement is and shall be limited to one
of contract. Neither the contractual relationship between the Parties
established hereby nor any provision of this Agreement shall be construed to
create a partnership or joint venture between the Parties, or make either Party
in any way responsible for the indebtedness, obligations, legal compliance or
other liabilities of the other Party, except as specifically herein
provided. Neither Party shall have any authority or power to act for
or bind the other or to encumber, lease or convey any part of or interest in the
other Party’s property. The Parties shall develop procedures and
practices so that the interests of any Party are not favored or required to be
preferred over the interests of the other, except as provided
herein.
(b) Except as
provided herein, this Agreement shall not in any manner (i) limit the
Parties in carrying on their respective separate businesses or activities,
(ii) impose upon either Party any fiduciary duty vis-a-vis the other or
(iii) impose upon either Party any obligation or liability.
(c) The
Parties recognize that some of their respective operations are located at shared
sites and that necessary interactions result from the proximity of their
businesses and the shared responsibilities resulting from the use of the shared
sites. The businesses of the respective Parties will be managed by
the Parties, as independent companies, and each will act and conduct business
independently. Further, each Party recognizes its responsibility to
support the capability of each other Party to continue to conduct their
respective businesses for routine and non-routine activities (including but not
limited to start-up, shut down, emergency and other infrequent or unanticipated
opportunities or events).
5
SECTION
8. NON-LIABILITY OF THE
PARTIES.
8.1 Standard
of Care. Service Provider shall perform the Services in a good
and workmanlike manner, exercising reasonable skill, care and diligence in
performing the same, (i) consistent in all material respects with the practices
and processes followed or implemented by Service Provider when performing the
same Services in connection with the Service Provider Business, (ii) with the
same priority it would afford Service Provider’s operations and (iii) in
accordance with prudent industry practices and Applicable Law. Except
as described herein or due to a breach hereof, unless caused by the gross
negligence or willful misconduct of a Party, the respective Parties shall not be
liable for any damage arising out of their performance of this Agreement,
whether with respect to the person or property of the other Party or of any of
its employees, agents, or invitees, or otherwise.
8.2 Disclaimer
of Warranties; Limitation of Liability. SERVICE PROVIDER
MAKES NO WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, RELATING TO ANY OF THE
SERVICES AND SERVICE PROVIDER DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES
IMPOSED BY LAW, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT FOR THE PARTIES’
INDEMNIFICATION OBLIGATIONS WITH RESPECT TO CLAIMS OF THIRD PARTIES, THE
PARTIES’ LIABILITY FOR DAMAGES HEREUNDER IS LIMITED TO DIRECT, ACTUAL DAMAGES
ONLY, AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIFIC PERFORMANCE,
LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, OR SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, IN TORT, CONTRACT OR
OTHERWISE, OF ANY KIND, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE
PERFORMANCE, THE SUSPENSION OF PERFORMANCE, THE FAILURE TO PERFORM, OR THE
TERMINATION OF THIS AGREEMENT.
SECTION
9. INDEMNIFICATION.
9.1 Subject to Section 8,
each Party (each an “Indemnitor”) shall
defend, indemnify, and hold harmless the other Party, each of such Party’s
Affiliates, and the officers, employees, directors, representatives and agents
of such Party and its Affiliates (collectively, “Indemnitees”) from
and against any and all Liabilities to the extent that they result from, arise
out of or relate to (a) an Indemnitor’s (i) breach of this Agreement, (ii)
failure to comply with any contract with a third party relating to the Services
or (iii) failure to comply with Applicable Law or (b) any gross negligence or
willful misconduct of such Indemnitor, its Affiliates or its officers,
employees, directors, managers, representatives or agents in connection with the
performance of such Party’s obligations under this Agreement. Such
Liabilities shall include, but not be limited to, reasonable attorneys’ fees and
any other out-of-pocket expenses incurred by an Indemnitee in defending or
prosecuting any lawsuit or action that arises out of the performance of this
Agreement. Notwithstanding the foregoing, however, an Indemnitor
shall not be liable to defend, indemnify or hold harmless any Indemnitee for any
Liabilities arising out of or resulting from the gross negligence or willful
misconduct of such Indemnitee.
6
9.2 In
addition to the indemnification obligations contained in Section 9.1 above,
Service Recipient shall defend, indemnify, and hold harmless Service Provider,
each of Service Recipient’s Affiliates, and the officers, employees, directors,
representatives and agents of Service Provider and its Affiliates from and
against any and all Liabilities to the extent that they result from, arise out
of or relate to any allegation, claim, administrative finding or judicial
determination that Service Provider, by virtue of its performance of this
Agreement is an ‘operator’ or ‘generator’ under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or analogous state
laws, of any real property owned, operated, leased or occupied by Service
Recipient. For purposes of this Article IX, Service
Recipient shall be an “Indemnitor” and Service Providers and its Affiliates and
their respective officers, employees, directors and agents shall be
“Indemnitees”.
9.3 The
Parties’ obligations to defend, indemnify and hold each other harmless under the
terms of this Agreement shall not vest any rights in or be enforceable by any
third party, whether a Governmental Authority or private entity, nor shall they
be considered an admission of liability or responsibility for any purposes other
than those enumerated in this Agreement. The terms of this Agreement
are enforceable only by the Parties and their permitted successors and assigns,
and no third party, including a member of Service Recipient, shall have a
separate right to enforce any provision of this Agreement, or to compel any
Party to comply with the terms of this Agreement.
9.4 The
Indemnitee shall notify the Indemnitor as soon as practicable after receiving
notice of any claim or proceeding brought against it that might give rise to an
indemnity claim under this Agreement (an “Indemnification
Claim”) and shall furnish to the Indemnitor the complete details within
its knowledge. Any delay or failure by the Indemnitee to give notice
to the Indemnitor shall not relieve the Indemnitor of its obligations except to
the extent, if any, that the Indemnitor shall have been materially prejudiced by
reason of such delay or failure.
9.5 The
Indemnitor shall have the right to assume the defense, at its own expense and by
its own counsel, of any Indemnification Claim; provided, however, that such
counsel is reasonably acceptable to the Indemnitee Notwithstanding
the Indemnitor’s appointment of counsel to represent an Indemnitee, the
Indemnitee shall have the right to employ separate counsel reasonably acceptable
to the Indemnitor, and the Indemnitor shall bear the reasonable fees, costs and
expenses of such separate counsel if in the Indemnitee’s reasonable judgment (a)
the use of counsel chosen by the Indemnitor to represent the Indemnitee would
present such counsel with a conflict of interest or defenses that are available
to the Indemnitee that are not available to the Indemnitor or (b) the Indemnitor
shall not have employed counsel to represent the Indemnitee within a reasonable
time after notice of the institution of such Indemnification
Claim. If requested by the Indemnitor, the Indemnitee Party agrees to
reasonably cooperate with the Indemnitor and its counsel in contesting any claim
or proceeding that the Indemnitor defends, including, if appropriate, making any
counterclaim or cross-complaint. All reasonably incurred costs and
expenses incurred in connection with the Indemnitee’s cooperation shall be borne
by the Indemnitor.
7
9.6 No
Indemnification Claim may be settled or compromised by (a) the Indemnitee
without the written consent of the Indemnitor or (b) by the Indemnitor without
the written consent of the Indemnitee.
SECTION
10. CONFIDENTIALITY.
From and
after the date hereof, each Party shall not and shall cause their directors,
officers, employees and Affiliates not to, directly or indirectly, disclose,
reveal, divulge or communicate to any person other than authorized officers,
directors and employees and Affiliates of the Party or use or otherwise exploit
for its own benefit any Confidential Information (as defined
below). No Party shall have any obligation to keep confidential (or
cause its officers, directors or Affiliates to keep confidential) any
Confidential Information if and to the extent disclosure thereof is specifically
required by Applicable Law or a dispute between the Parties; provided, however, that in the
event disclosure is required by Applicable Law or by regulation and as required
by regulatory authorities, the relevant Party shall, to the extent reasonably
possible, provide the other Party with prompt notice of such requirement prior
to making any disclosure so that the other Party may seek an appropriate
protective order. For purposes of this Agreement, “Confidential
Information” means any information with respect to the
operations and business practices of the other Party, including methods of
operation, customer lists, products, prices, fees, costs, inventions, trade
secrets, know-how, marketing methods, plans, personnel, suppliers, competitors,
markets or other specialized information or proprietary
matters. “Confidential Information” does not include, and there shall
be no obligation hereunder with respect to, information that (i) is generally
available to the public on the date of this Agreement or (ii) becomes generally
available to the public other than as a result of a disclosure not otherwise
permissible hereunder. The Parties consent to the filing of this
Agreement (i) with the Bankruptcy Court in connection with the Bankruptcy Cases
and (ii) with the Securities and Exchange Commission.
SECTION
11. FORCE
MAJEURE.
11.1 If
Service Provider shall be delayed, hindered in or prevented from performing any
act required to be performed by it hereunder by any cause or circumstance which
is beyond its control including, without limitation, an act of god, strikes,
lockouts or other labor troubles occurring with respect to those sites for which
Services are being provided hereunder, inability to procure materials (including
energy), power failure, casualty, restrictive governmental laws, orders or
regulations, riots, insurrection, war or other reason of a like nature not the
fault of Service Provider, then performance of any such act shall be extended
for a period equivalent to the period of such delay and a reasonable period of
recovery thereafter.
11.2 If for
any of the reasons set forth above Service Provider shall be unable to perform
any obligation when due, Service Provider shall promptly notify Service
Recipient of such delay (and the estimated time that such delay shall continue),
in writing, and state the cause for the same. Service Provider shall
have the obligation to do everything reasonably within its power to remove such
cause, but shall not be required to incur any substantial additional expense or
materially depart from its normal business practices. Service Recipient shall
not be required to pay for any disrupted Services during the period in which
they are not being provided to Service Recipient pursuant to the terms of this
Agreement.
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SECTION
12. NOTICES.
12.1 Any
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given upon receipt if (i) hand delivered personally,
(ii) mailed by certified or registered mail, return receipt requested, (iii)
sent by Federal Express or other express carrier, fee prepaid, (iv) sent via
facsimile with receipt confirmed or (v) sent via electronic email with receipt
confirmed, provided that such notice or communication is addressed to the
respective Parties at the following addresses:
|
to
Service Provider:
|
SemCrude,
L.P.
Two
Xxxxxx Place
0000 X.
Xxxx Xxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxxx 00000
Phone: (000)
000-0000
Fax: (000)
000-0000
Attention: Chief Financial
Officer
With a
copy to:
Weil,
Gotshal & Xxxxxx LLP
000
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxxx
X. Xxxxxx, Esq.
|
to
Service Recipient:
|
SemGroup
Energy Partners, L.L.C.
Two
Xxxxxx Place
0000 X.
Xxxx Xxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxxx 00000
Phone:
(000) 000-0000
Fax: (000)
000-0000
Attention:
Chief Financial Officer
With a
copy to:
Xxxxx
Xxxxx L.L.P.
0000 Xxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Phone: (000)
000-0000
Fax: (000)
000-0000
Attention:
Xxxx Xxxxxxx, Esq.
12.2 Any Party
may change the person and address to which notices or other communications to it
hereunder are to be sent by giving written notice of any such change to the
other Party in the manner provided in this Section
12.
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SECTION
13. GENERAL
PROVISIONS.
13.1 Entire
Agreement; Exhibits and Schedules. This Agreement,
and the Exhibits hereto, represent the entire understanding and agreement
between the Parties hereto with respect to the subject matter hereof and
supersede any previous agreements or correspondence between the Parties with
respect to the same. All Exhibits annexed hereto or referred to
herein are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. Any capitalized terms used in any Exhibit but
not otherwise defined therein shall be defined as set forth in this
Agreement.
13.2 Amendments
and Waivers. This Agreement and the Exhibits hereto can be amended,
supplemented or changed, and any provision hereof can be waived, only by written
instrument making specific reference to this Agreement or the Exhibit hereto
signed by the Party against whom enforcement of any such amendment, supplement,
modification or waiver is sought. The Parties hereby acknowledge and
agree that a material amendment to this Agreement or any of the Exhibits
requires the approval of the Bankruptcy Court prior to the effective date of the
plan of reorganization in the Bankruptcy Cases. The waiver by any
Party hereto of a breach of any provision of this Agreement shall not operate or
be construed as a further or continuing waiver of such breach or as a waiver of
any other or subsequent breach. No failure on the part of any Party
to exercise, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
such right, power or remedy by such Party preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
13.3 Assignment;
Successors. This
Agreement shall be personal to each Party and no Party may assign or transfer
(directly or indirectly, by merger, consolidation, operation of law or
otherwise) its rights or obligations hereunder without the prior written consent
of the other Party, such consent not to be unreasonably withheld, conditioned or
delayed; provided, however, that a Party
may assign, without the prior written consent of each other Party, this
Agreement or their respective rights and obligations hereunder, in whole or in
part, to an Affiliate or any successor in interest of such Party, including the
purchaser of all or substantially all of the assets of such
Party. This Agreement shall inure to the benefit of, and shall be
binding upon, the Parties and their respective permitted successors and assigns,
including with respect to Service Provider, any reorganized debtor entity
appointed pursuant to the plan of reorganization of Service
Provider.
13.4 Counterparts. This Agreement
may be executed in any number of counterparts each of which, when so executed
and delivered (including by facsimile or electronic mail transmission), will be
deemed an original but all of which together will constitute one and the same
instrument.
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13.5 Headings. The captions of
this Agreement are for convenience only and are not a part of this Agreement and
do not in any way limit or amplify the terms and provisions of this Agreement
and shall have no effect on its interpretation.
13.6 Severability. If any term or
provision of this Agreement is invalid, illegal or incapable of being enforced
by Law or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the legal and economic
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such determination that any
term or provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent
possible.
13.7 Governing
Law; Waiver of Jury Trial. THIS AGREEMENT, THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY
DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR
ANY OTHER THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, SHALL IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED,
AND DETERMINED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF OKLAHOMA
(WITHOUT REGARD TO ANY CONFLICT OF LAWS PROVISION THAT WOULD REQUIRE THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION). THE PARTIES HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION, OR IN ANY PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
(WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY
CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
13.8 Enforcement.
(a) Without
limiting any Party’s right to appeal any Order of the Bankruptcy Court, (i) the
Bankruptcy Court shall retain exclusive jurisdiction to enforce the terms of
this Agreement and to decide any claims or disputes which may arise or result
from, or be connected with, this Agreement, any breach or default hereunder, or
the transactions contemplated hereby, and (ii) any and all actions related to
the foregoing shall be filed and maintained only in the Bankruptcy Court, and
the Parties hereby consent to and submit to the jurisdiction and venue of the
Bankruptcy Court and shall receive notices at such locations as indicated in
Section 12.1;
provided, however, that if a
plan of reorganization has become effective in the Bankruptcy Cases, the Parties
agree to and hereby unconditionally and irrevocably submit to the jurisdiction
of any federal or state court in Oklahoma and any appellate court from any
thereof, for the resolution of any such claim or dispute.
(b) The
Parties hereby unconditionally and irrevocably waive, to the fullest extent
permitted by Applicable Law, any objection which they may now or hereafter have
to the laying of venue of any dispute arising out of or relating to this
Agreement or any of the transactions contemplated hereby brought in any court
specified in paragraph (a) above, or any defense of inconvenient forum for the
maintenance of such dispute. Each of the Parties hereto agrees that a
judgment in any such dispute may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
(c) Each of
the Parties hereto hereby consents to process being served by any Party to this
Agreement in any suit, action or proceeding by the mailing of a copy thereof in
accordance with the provisions of Section 12.1(ii);
provided, however, that such
service shall not be effective until the actual receipt thereof by the Party
being served.
[Signature
page follows.]
11
IN WITNESS WHEREOF, the
Parties hereto have made and executed this Agreement as of the day and year
first above written to be effective as of the Effective Date.
SERVICE
PROVIDER
SEMGROUP,
L.P.
By:
SemGroup G.P., L.L.C., its general partner
By: /s/ Xxxxxxxx
Xxxxx
Name: Xxxxxxxx
Xxxxx
Title: President
& CEO
SEMCRUDE,
L.P.
By:
SemOperating G.P., L.L.C., its general partner
By: /s/ Xxxxxxxx
Xxxxx
Name: Xxxxxxxx
Xxxxx
Title: President
& CEO
SEMMATERIALS,
L.P.
By:
SemOperating G.P., L.L.C., its general partner
By: /s/ Xxxxxxxx
Xxxxx
Name: Xxxxxxxx
Xxxxx
Title: President
& CEO
SEMMANAGEMENT,
L.L.C.
By: /s/ Xxxxxxxx
Xxxxx
Name: Xxxxxxxx
Xxxxx
Title: President
& CEO
SERVICE
RECIPIENT
By:
SemGroup Energy Partners G.P., L.L.C., its general partner
By: /s/ Xxxx X.
Xxxxxxxxx
Name: Xxxx
X. Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
SEMGROUP
ENERGY PARTNERS, L.L.C.
By: /s/ Xxxx X.
Xxxxxxxxx
Name: Xxxx
X. Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
SEMGROUP
CRUDE STORAGE, L.L.C.
By: /s/ Xxxx X.
Xxxxxxxxx
Name: Xxxx
X. Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
SEMPIPE
G.P., L.L.C.
By: /s/ Xxxx X.
Xxxxxxxxx
Name: Xxxx
X. Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
SEMPIPE,
L.P.
By: SemPipe
G.P., L.L.C.,
its
general partner
By: /s/ Xxxx X.
Xxxxxxxxx
Name: Xxxx
X. Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
SEMMATERIALS
ENERGY PARTNERS, L.L.C.
By: /s/ Xxxx X.
Xxxxxxxxx
Name: Xxxx
X. Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
SGLP
ASPHALT L.L.C.
By: SemMaterials
Energy Partners, L.L.C.,
its sole member
By: /s/ Xxxx X.
Xxxxxxxxx
Name: Xxxx
X. Xxxxxxxxx
Title: Chief
Financial Officer and Secretary
EXHIBIT
A
CORPORATE
TRANSITION SERVICES
ARTICLE
I. TERM AND
TERMINATION.
Section
1.01 Term. Subject
to earlier termination in accordance with the provisions of Section 1.02 of this
Exhibit A,
Service Provider may provide the Services on this Exhibit A for an
initial period of one (1) month, commencing on the Effective Date, or for such
shorter period as provided in this Exhibit
A. Services under Sections 2.03 and
2.05 of this
Exhibit A will
be for an initial period of two (2) months. Parties may mutually
agree to extend the term of the sections in this Exhibit A, except for
Section 2.05, for up to two additional one (1) month
periods. The term of Section 2.05 of this
Exhibit A
cannot be extended beyond the initial period of two (2) months.
Section
1.02 Early
Termination. This Agreement may be terminated with respect to
the transition services in this Exhibit A in the
following cases:
(a)
|
by
Service Recipient upon not less than five (5) days’ prior written notice
to Service Provider with respect to all or any portion of the Services
provided to it to it by Service Provider; provided, however, that
the Parties may mutually agree in writing to shorten such notice period
prior to termination of Services;
|
(b)
|
by
Service Provider with respect to the Services provided to Service
Recipient upon not less than fifteen (15) days’ prior written notice to
Service Recipient in the event of a material breach by Service Recipient
of any term or provision of this Agreement, unless such breach has been
cured within five (5) days from receipt by Service Recipient of such
notice; provided, however; that
nonpayment of any Disputed Items that remain outstanding in accordance
with Section
5.2(b) of this Agreement shall not constitute a breach of this
Agreement;
|
(c)
|
by
Service Provider with respect to any Service outlined in this Exhibit A
provided to Service Recipient upon not less than fifteen (15) days’ prior
written notice to Service Recipient in the event Service Provider
experiences a loss of employees that results in Service Provider being
unable to fulfill any Service outlined in this Exhibit A;
provided,
however,
that Service Recipient and Service Provider may agree to a temporary
suspension, allow Service Provider to cover with other employees, allow
Service Provider five (5) days prior written notice if employees terminate
employment with no notice period to Service Provider, or allow Service
Provider to use Outsourced Service for Services rather than
termination; and
|
(d)
|
by
Service Provider and Service Recipient upon mutual
agreement.
|
ARTICLE
II. SERVICES PROVIDED AND
CHARGES.
Section
2.01 General.
(a)
|
Service
Provider will provide Service Recipient with the services of such
employees as are needed to provide the Services outlined in this Exhibit A. The
charges and other terms and conditions relating to such Services are more
particularly described in Sections
2.02-2.05 below.
|
(b)
|
Services
will be provided (i) consistent in all material respects with practices
and processes for the performance of such Services as historically
provided by the Service Provider to Service Recipient and those the
Service Provider provides for its own operations, to the extent
applicable, (ii) as specifically noted in Sections
2.02-2.05 below, (iii) with the same priority that Service Provider
would afford Service Provider’s operations except as provided in Section
2.01(c), and (iv) in accordance with Applicable
Law.
|
(c)
|
To
the extent applicable, Service Recipient acknowledges that Service
Provider must also facilitate its own business operations and may be
required to prioritize work from time to time. In such
instances, Service Provider will notify Service Recipient of any delay or
issues in providing the Service. If Service Recipient is unsatisfied with
the delay, Service Recipient may exercise its rights in Section
1.02(a).
|
Section
2.02 Corporate Accounting
Support.
(a)
|
Service
Provider will provide continued applicable access to and applicable
support for Service Provider’s accounting systems to enable Service
Recipient to close their March 2009 accounting books. To the
extent applicable and in compliance with Service Provider’s legal
limitations, Service Provider will work with Service Recipient to migrate
needed accounting records to Service Recipient. Together these
services represent the corporate accounting support (“Corporate Accounting
Service”) Service Provider will provide to Service
Recipient.
|
(b)
|
Service
Provider will not have access to Service Recipient’s accounting system and
as such will not directly make any accounting entry into Service
Recipient’s accounting system; provided, that Service Provider will
provide Service Recipient appropriate documentation to support accounting
entries related to the services provided under this Section 2.02 by
Service Provider. Service Provider will not have access to
Service Recipient’s bank accounts and as such will not process payments
for any accounts payable or accounts receivable for Service
Recipient.
|
(c)
|
Service
Recipient’s access to Service Provider’s accounting system will be limited
to entries relating to the time period prior to March 31,
2009.
|
(d)
|
Corporate
Accounting Charge = Corporate Accounting Fixed Fee + Corporate Accounting
Outsourced Service Charges
|
(i)
|
Charges
related to Service Provider’s internal costs will be charged at a fixed
rate of $21,000 (“Corporate Accounting
Base Fee”). Upon the termination of this service, the
fixed rate will be prorated for the portion of the calendar month the
service is provided.
|
1)
|
Corporate
Accounting Fixed Fee = Corporate Accounting Base Fee * (Month Calendar
Days for Service/Month Total Calendar
Days).
|
(ii)
|
Outsourced
Service charges related to Corporate Accounting
Services (“Corporate Accounting
Outsourced Service Charges”) incurred by Service Provider in
providing Corporate Accounting Services to Service Recipient will be
charged to Service Recipient.
|
Section
2.03 Property and Sales and Use
Tax Support.
(a)
|
Service
Provider will provide to Service Recipient property and sales and use tax
compliance support to Service Recipient (“Tax
Service”). Compliance support will include the
preparation of the applicable property, sales and use tax returns based
upon information provided by Service Recipient. Service
Recipient will be responsible for the review, signature and filing/mailing
of the returns
|
(b)
|
Service
Provider will not have access to Service Recipient’s accounting system and
as such will not directly make any accounting entry into Service
Recipient’s accounting system; provided, that Service Provider will
provide Service Recipient appropriate documentation to support accounting
entries related to the services provided by Service Provider under this
Section
2.03. Service Provider will not have access to Service
Recipient’s bank accounts and as such will not process any tax related
accounts payable or accounts receivable for Service
Recipient.
|
(c)
|
Service
Provider will work with Service Recipient to transition the Tax Service to
a tax service provider as designated by Service Recipient during the Term
of this Exhibit
A. If Service Recipient needs additional transition time
after the Term of this Exhibit A, the
Parties will work in good faith to enter into an agreement to provide such
Tax Services.
|
(i)
|
If
Service Recipient chooses to use the same tax service provider as Service
Provider and the tax service provider is willing to credit a portion of
Service Provider’s 2009 prepaid fees to such tax service provider to
Service Recipient, Service Recipient will reimburse Service Provider for
such prepaid fees.
|
(d)
|
Tax
Service Charge = Tax Service Fixed Fee + Tax Service Outsourced Service
Charges
|
(i)
|
Charges
related to Service Provider’s internal costs will be charged at a fixed
rate of $30,000 (“Tax Service Base
Fee”). Upon the termination of this service, the fixed
rate will be prorated for the portion of the calendar month the service is
provided.
|
1)
|
Tax
Fixed Fee = Tax Base Fee * (Month Calendar Days for Service/Month Total
Calendar Days).
|
(ii)
|
Outsourced
Service charges related to Tax Services (“Tax Outsourced Service
Charges”) incurred by Service Provider in providing Tax Services to
Service Recipient will be charged to Service
Recipient.
|
(e)
|
Service
Provider will rely on information provided by Service Recipient in
providing Tax Services. Service Provider is not responsible for
the accuracy of any data provided by Service
Recipient.
|
Section
2.04 Information Technology
Support.
(a)
|
Service
Provider will provide applicable access to and support for Service
Provider’s information technology platform that Service Recipient had
immediately prior to the Effective Date, including, without limitation,
telecommunication services, and excluding any exceptions noted in this
Exhibit A
(“IT
Service”).
|
(b)
|
To
the extent applicable and in compliance with Service Provider’s legal
limitations and to the extent such actions do not jeopardize Service
Provider’s own records, Service Provider will work with Service Recipient
to migrate to Service Recipient needed electronic data files to operate
their business. Electronic data files will include historical
files related to Service Recipient’s operations and electronic
mail. Service Recipient will continue efforts to establish its
own information technology capabilities and Service Provider will work
with Service Recipient to establish a mutually agreeable cutover date for
information technology across Service Recipient’s
businesses.
|
(c)
|
Through
December 31, 2009, Service Provider agrees to forward any and all
electronic mail or other communications intended for Service Recipient or
any of its officers, directors, employees, contractors, and agents at no
cost to the extent the volume is reasonable and Service Recipient has made
reasonable efforts to notify parties of Service Recipient’s new electronic
addresses.
|
(d)
|
IT
Charge = IT Fixed Fee + IT Outsourced Service
Charges
|
(i)
|
Charges
related to Service Provider’s internal costs will be charged at a fixed
rate of $42,000 (“IT Base
Fee”). Upon the termination of this service, the fixed
rate will be prorated for the portion of the calendar month the service is
provided.
|
1)
|
IT
Fixed Fee = IT Base Fee * (Month Calendar Days for Service/Month Total
Calendar Days).
|
(ii)
|
Outsourced
Service charges related to IT Services (“IT Outsourced Service
Charges”) incurred by Service Provider in providing IT Services to
Service Recipient will be charged to Service
Recipient.
|
Section
2.05 Xxxxxx Place Sub
Lease.
(a)
|
Service
Recipient will reimburse Service Provider for office space and associated
operating costs for office space that Service Recipient subleases in suite
500 (“Service
Recipient Office Sub Lease”) from Service Provider at 0000 Xxxxx
Xxxx Xxxxxx, Xxxxx, Xxxxxxxx (“Service Provider
Office Lease”). A graphical representation of the square
footage associated with such Service Recipient Office Sub Lease is
attached hereto as Schedule
2.05(a).
|
(b)
|
Service
Provider acknowledges that Service Recipient owns all office furniture and
furnishings, computer hardware, printers, telephones and other
communications devices, televisions, office supplies, copiers, equipment,
fixtures, cubicles, leasehold improvements and other tangible personal
property (“Furniture and
Equipment”) located within the office space that is the subject of
the Service Recipient Office Sub Lease. Service Recipient
acknowledges that, except for personal effects, including artwork, owned
by Service Recipient's or its Affiliates’ employees, Service Provider owns
the art work in the Service Recipient Office Sub Lease, including, but not
limited to, the art work listed on Schedule 2.05(b), and Service Provider
will remove such art work from Service Recipient Office Sub Lease within
thirty (30) days of the Effective Date of this
Agreement.
|
(c)
|
Service
Provider currently provides services relating to the security of the
office space that is the subject of the Service Recipient Office Sub
Lease, including access to and from such office space. Service
Provider will continue to provide such services and agrees to work with
Service Recipient to transition these security services to another
provider on or before the expiration of the Term of this Section 2.06 of
Exhibit A
to the extent applicable.
|
(d)
|
Office
Sub Lease Charge = Office Sub Lease Rent + Office Sub Lease Outsourced
Service Charge
|
(i)
|
Office
Sub Lease Rent = (Office Sub Lease Square Feet * (Sub Lease Rental Rate +
Sub Lease Operating Rate))/12
|
1)
|
Service
Recipient currently sub-leases 12,476 square feet from Service Provider;
however, to the extent Service Recipient increases or decreases their
office space the square feet will be adjusted accordingly upon mutual
agreement by both Parties (“Office Sub Lease
Square Feet”).
|
2)
|
Service
Recipient will be charged a lease rental rate of $17.50 per square foot,
to the extent Service Provider’s lease rental rate increases or decreases
such increase or decrease will be applied to Service Recipient’s lease
rental rate (“Sub Lease Rental
Rate”).
|
3)
|
Service
Recipient will be charged an operating cost of $2.00 per square foot
(“Sub Lease
Operating Rate”). Sub Lease Operating Rate excludes
costs of parking associated with the Service Recipient Office Sub
Lease.
|
4)
|
Sub
Lease Rental Rate and Sub Lease Operating Rate are annual rates and will
be divided by twelve (12) calendar months in the annual
period.
|
(ii)
|
Outsourced
Service charges related to the Service Provider Office Lease (“Office Lease
Outsourced Service Charges”) incurred by Service Provider will be
allocated to Service Provider or Service Recipient, as applicable, when
charges can be identified to a specific Party or, when such charges cannot
be so identified, will be allocated to Service Recipient based on Office
Sub Lease Square Feet compared to the total square feet of Service
Provider Office Lease. Parking associated with Service
Recipient Office Sub Lease will be charged as Office Lease Outsourced
Service Charges.
|
(e)
|
If
Service Recipient wants to make a modification to the Office Sub Lease
Square Feet prior to May 31, 2009, Service Recipient will first obtain
Service Provider’s consent which may be conditioned on receiving Service
Provider’s landlord consent. If Service Recipient receives
consent from Service Provider to make a modification, Service Recipient is
responsible for any costs associated with making the modification and any
modification will be consistent with the modification plan that was
provided to the Service Provider to gain
consent.
|
(f)
|
Service
Provider may choose to formalize the Service Recipient Office Sub Lease
with a formal sub lease agreement the terms of which will be consistent
with those outlined herein. Service Recipient agrees to
cooperate and work in good faith to negotiate and execute such agreement
if requested by Service Provider.
|
(g)
|
Service
Recipient is responsible for negotiating a direct lease with the Service
Provider Office Lease landlord or procuring alternate office space by May
31, 2009. Service Provider (i) no longer intends to lease
the office space that is the subject of the Service Recipient Office Sub
Lease as of May 31, 2009, (ii) intends to notify the landlord of the
Service Provider Office Lease regarding such intent, and (iii) agrees to
take all reasonably necessary actions to terminate the office space that
is the subject of the Service Recipient Office Sub Lease with the landlord
of the Service Provider Office Lease on or prior to May 31,
2009. In no event shall Service Recipient be responsible for
costs, expenses, fees or penalties associated with such
termination.
|
Section
2.06 Administrative
Charge.
(a)
|
Service
Provider will add an administrative charge of 25% to all fixed fees,
except Office Sub Lease Rent, beginning with the second calendar month
from the Effective Date; provided, however, such
administrative charge will not exceed $25,000 per calendar
month. For clarity, there will be no administrative charge for
the first calendar month from the Effective
Date.
|
(b)
|
Administrative
Charge is;
|
(i)
|
For
calendar month one, Administrative Charge =
$0.00;
|
(ii)
|
For
calendar months two and three, Administrative Charge = Lessor of $25,000
or (.25 * (Corporate Accounting Fixed Fee + Tax Service Fixed Fee + IT
Fixed Fee)).
|
Section
2.07 Payment
of Charges.
(a)
|
Services
outlined in this Exhibit A will
be invoiced monthly in accordance with Section 5 of
this Agreement.
|
Section
2.08 Amendment
to Exhibit.
(a)
|
Changes
to the Services provided under this Exhibit A must
be formalized as an amendment to this Exhibit A and
accepted in writing by the Parties.
|
EXHIBIT
B
CRUDE
TRANSITION SERVICES
ARTICLE
I. TERM AND
TERMINATION.
Section
1.01 Term. Subject
to earlier termination in accordance with the provisions of Section 1.02 of this
Exhibit B,
Service Provider may provide the Services on this Exhibit B for a
period of one (1) month, commencing on the Effective Date, or for such shorter
period as provided in this Exhibit
B. Parties may mutually agree to extend the Term of this Exhibit B for up to
three additional one (1) month periods, provided, however, the decision
to extend the Term of this Exhibit B is at the
sole election of the Service Recipient if Service Provider has not complied with
Section
2.01(b). In no event shall the Term of this Exhibit B extend
beyond four (4) months from the Effective Date.
Section
1.02 Early
Termination. This Agreement may be terminated with respect to
the transition services in this Exhibit B in the
following cases:
(a)
|
by
Service Recipient upon not less than five (5) days’ prior written notice
to Service Provider with respect to all or any portion of the Services
provided to it to it by Service Provider; provided, however, that
the Parties may mutually agree in writing to shorten such notice period
prior to termination of Services;
|
(b)
|
by
Service Provider with respect to the Services provided to Service
Recipient upon not less than fifteen (15) days’ prior written notice to
Service Recipient in the event of a material breach by Service Recipient
of any term or provision of this Agreement, unless such breach has been
cured within five (5) days from receipt by Service Recipient of such
notice; provided, however; that
nonpayment of any Disputed Items that remain outstanding in accordance
with Section
5.2(b) of this Agreement shall not constitute a breach of this
Agreement;
|
(c)
|
by
Service Provider with respect to any Service outlined in this Exhibit B
provided to Service Recipient upon not less than fifteen (15) days’ prior
written notice to Service Recipient in the event Service Provider
experiences a loss of employees that results in Service Provider being
unable to fulfill any Service outlined in this Exhibit B;
provided,
however,
that Service Recipient and Service Provider can agree to a temporary
suspension, allow Service Provider to cover with other employees, allow
Service Provider five (5) days prior written notice if employees terminate
employment with no notice to Service Provider or Service Provider has
complied with Section
2.01(b), or allow Service Provider to use Outsourced Service
for Services rather than termination;
and
|
(d)
|
by
Service Provider and Service Recipient upon mutual
agreement.
|
ARTICLE
II. SERVICES PROVIDED AND
CHARGES.
Section
2.01 General.
(a)
|
Service
Provider will provide Service Recipient with the services of such
employees as are needed to provide the Services outlined in this Exhibit B. The
charges and other terms and conditions relating to such Services are more
particularly described in Section 2.02
below.
|
(b)
|
The
Parties acknowledge that the Services are being provided to allow
sufficient time for Service Recipient to hire accounting employees to
perform Service Recipient’s crude accounting. Such employees
may be hired from Service Provider’s crude oil accounting
staff. Service Provider agrees to take all reasonable actions
such that Service Recipient can make an offer of employment to such
Service Provider employees prior to the expiration of the Term and Service
Provider will be in compliance with this Section 2.01 to
the extent such actions are taken. The Parties acknowledge that
the acceptance of employment is solely at the discretion of the
individuals being offered
employment.
|
(c)
|
Services
will be provided (i) consistent in all material respects with practices
and processes for the performance of such Services as historically
provided by the Service Provider and those the Service Provider provides
for its own operations, to the extent applicable, (ii) as specifically
noted in Section
2.02 below, (iii) with the same priority that Service Provider
would afford Service Provider’s operations, and (iv) in accordance with
Applicable Law.
|
Section
2.02 Crude Oil Accounting
Support.
(a)
|
Service
Provider will provide to Service Recipient crude oil accounting support in
Oklahoma City, Oklahoma consistent with historical services provided to
Service Recipient by Service Provider (“Crude Oil Accounting
Service”).
|
(b)
|
Service
Provider will not have access to Service Recipient’s accounting system and
as such will not directly make any accounting entry into Service
Recipient’s accounting system; provided, that
Service Provider will provide Service Recipient appropriate documentation
to support accounting entries related to the Crude Oil Accounting Service
provided by Service Provider. Service Provider will not have
access to Service Recipient’s bank accounts and as such cannot process any
accounts payable or accounts receivable on behalf of Service
Recipient.
|
(c)
|
Crude
Accounting Charge = Crude Accounting Fixed Fee + Crude Accounting
Outsourced Service Charges
|
(i)
|
Charges
related to Service Provider’s internal costs will be charged at a fixed
rate of $23,000 (“Crude Accounting Base
Fee”). Upon the termination of this service, the fixed
rate will be prorated for the portion of the calendar month the service is
provided.
|
1)
|
Crude
Accounting Fixed Fee = Crude Accounting Base Fee * (Month Calendar Days
for Service/Month Total Calendar
Days).
|
(ii)
|
Outsourced
Service charges related to Crude Accounting Services (“Crude Accounting
Outsourced Service Charges”) incurred by Service Provider in
providing Crude Accounting Services to Service Recipient will be charged
to Service Recipient.
|
(d)
|
If
Service Provider desires to change historical operating practices in crude
oil accounting, Service Provider will first consult with Service Recipient
and procure Service Recipient’s concurrence with the desired
change. If Service Recipient does not concur with the desired
change, Service Provider will not make any changes to historical
practice.
|
Section
2.03 Administrative
Charge.
(a)
|
Service
Provider will not apply an administrative charge for the Services provided
under this Exhibit
B.
|
Section
2.04 Payment
of Charges.
(a)
|
Services
outlined in this Exhibit B will
be invoiced monthly in accordance with Section 5 of
this Agreement.
|
Section
2.05 Amendment
to Exhibit.
(a)
|
Changes
to the Services provided under this Exhibit B must
be formalized as an amendment to this Exhibit B and
accepted in writing by the Parties.
|
EXHIBIT
C
MATERIALS
TRANSITION SERVICES
ARTICLE
I. TERM AND
TERMINATION.
Section
1.01 Term. Subject
to earlier termination in accordance with the provisions of Section 1.02 of this
Exhibit C,
Service Provider may provide the Services on this Exhibit C for a
period of three (3) months, commencing on the Effective Date, or for such
shorter period as provided in this Exhibit
C. Parties may mutually agree to extend the term of this Exhibit C for up to
two additional one (1) month periods. Notwithstanding the foregoing,
the Term for the Utility Deposit Transition Period shall be as indicated in
Section
2.04.
Section
1.02 Early
Termination. This Agreement may be terminated with respect to
the transition services in this Exhibit C in the
following cases:
(a)
|
by
Service Recipient upon not less than fifteen (15) days’ prior written
notice to Service Provider with respect to all or any portion of the
Services provided to it to it by Service Provider; provided, however, that
the Parties may mutually agree in writing to shorten such notice period
prior to termination of Services;
|
(b)
|
by
Service Provider with respect to the Services provided to Service
Recipient upon not less than fifteen (15) days’ prior written notice to
Service Recipient in the event of a material breach by Service Recipient
of any term or provision of this Agreement, unless such breach has been
cured within five (5) days from receipt by Service Recipient of such
notice; provided, however; that
nonpayment of any Disputed Items that remain outstanding in accordance
with Section
5.2(b) of this Agreement shall not constitute a breach of this
Agreement;
|
(c)
|
by
Service Provider with respect to any Service outlined in this Exhibit C
provided to Service Recipient upon not less than fifteen (15) days’ prior
written notice to Service Recipient in the event Service Provider
eliminates the employees, such employees terminate their employment with
notice, or Service Recipient hires the employees that enable Service
Provider to fulfill any Service outlined in this Exhibit C;
provided,
however,
that Service Recipient may allow Service Provider five (5) days prior
written notice if employees terminate employment with no notice period to
Service Provider; and
|
(d)
|
by
Service Provider and Service Recipient upon mutual
agreement.
|
ARTICLE
II. SERVICES PROVIDED AND
CHARGES.
Section
2.01 General.
(a)
|
Service
Provider will provide Service Recipient with the services of such
employees as are needed to provide the Services outlined in this Exhibit C and
the Parties will provide to each other the Services outlined in this Exhibit
C. The charges and other terms and conditions relating
to such Services are more particularly described in Sections
2.02-2.04 below.
|
(b)
|
Service
Recipient acknowledges that Service Provider is in the process of winding
down Service Provider’s SemMaterials operations and that the winding down
of the operations will impact employee staffing and may impact operational
practices. To the extent Service Provider’s wind down of
SermMaterials results in elimination of employees providing the Service,
Service Provider may terminate the Service provided in accordance with
Section
1.02.
|
(i)
|
To
the extent Service Recipient is interested in offering employment to
SemMaterials’ employees, Service Recipient and Service Provider will work
together in good faith to develop a process to facilitate employment
offers to employees.
|
(c)
|
To
the extent Service Recipient has provided the SemMaterials Tulsa, Oklahoma
office as a mailing address to receive correspondence of any nature,
Service Recipient is responsible for contacting parties and providing
parties with an alternate mailing address. During the term of
this Exhibit
C, Service Provider will use its reasonable best efforts to forward
Service Recipient correspondence to Service Recipient to the extent the
office is open and Service Provider has adequate
staffing.
|
(d)
|
SemMaterials
will transfer operational responsibility for each Asphalt Site to Service
Recipient during the term of this Exhibit
C. The date Service Provider notifies Service Recipient
of the transfer of operational responsibility for each Asphalt Site will
be the “Asphalt
Site Transfer Date”. Service Provider will terminate
Outsourced Service associated with each Asphalt Site on or before the
Asphalt Site Transfer Date with the exception of utilities which are
covered in Section 2.04 of
this Exhibit
C.
|
(e)
|
As
of the Effective Date, Service Provider will carry insurance coverage
pertaining to SemMaterials’ assets owned by Service
Provider. Service Recipient is responsible for any insurance
coverage related to assets owned by it as of the Effective
Date.
|
(f)
|
The
Parties acknowledge and agree that the Services provided hereunder will
allow Service Recipient to provide asphalt cement and other product
terminalling and storage services on behalf of Service Provider and other
third parties, subject to the limitations referenced in this Exhibit
C.
|
(i)
|
To
the extent Service Recipient services to other third parties significantly
increases the Services provided under this Exhibit C,
Parties agree to negotiate in good faith to modify this agreement to
reflect such increases in Service
levels.
|
(g)
|
Services
will be provided (i) consistent with Services the Service Provider
provides for its own operations, to the extent applicable, (ii) as
specifically noted in Sections
2.02-2.04 below, (iii) with the same priority that Service Provider
would afford Service Provider’s operations except as provided in Section 2.01(h)
and (iv) in accordance with prudent industry practices, if applicable, and
Applicable Law.
|
(h)
|
To
the extent applicable, Service Recipient acknowledges that Service
Provider must facilitate its own business operations and may be required
to prioritize work from time to time. In such instances,
Service Provider will notify Service Recipient of any delay or issues in
providing the Service. If Service Recipient is unsatisfied with
the delay, Service Recipient may exercise its rights in Section
1.02(a).
|
Section
2.02 Operational
Support
(a)
|
Service
Provider will provide operational services, including operational
management, engineering and environmental, health, and safety, to Service
Recipient to support operations of the Asphalt Sites (“Operational
Service”). To the extent Service Recipient hires
employees to perform any services covered in this Section 2.02,
Service Provider will no longer provide such
service.
|
(b)
|
Operational
Charge = Operational Labor Fee + Operational Outsourced Service
Charges
|
(i)
|
Charges
related to Service Provider’s labor costs will be charged at a fixed rate
per Asphalt Site as outlined in Schedule 2.02
(“Operational
Base Fee”) up until the Asphalt Site Transfer Date. Upon
the Asphalt Site Transfer Date, the fixed rate for the applicable Asphalt
Site will be prorated for the portion of the calendar month the service is
provided.
|
(ii)
|
On
and after the Asphalt Site Transfer Date and to the extent the Service
Provider continues to employee operational staff at an Asphalt Site that
is expected to transfer to Service Recipient, Service Recipient will
reimburse Service Provider the Labor Cost of Service Recipient’s
operational staff that is employed by Service Provider at such Asphalt
Site. If applicable, Labor Cost will be prorated for the
portion of the calendar month the service is
provided.
|
1)
|
Operational
Labor Fee = Sum of all (Operational Base Fee * (Month Calendar Days for
Service/Month Total Calendar Days)) + Sum of all (Labor Cost * (Month
Calendar Days for Service/Month Total Calendar
Days)).
|
(iii)
|
Outsourced
Service charges related to Operational Services (“Operational Outsourced
Service Charges”) incurred by Service Provider in providing
Operational Services to Service Recipient will be charged to Service
Recipient as outlined in Section 2.03(d)
of this Exhibit
C.
|
Section
2.03 Corporate
Support
(a)
|
Service
Provider will provide corporate employee support, including inventory,
accounts payable and accounting data transfer, permit, utilities,
engineering, environmental, health, and safety support to Service
Recipient to support operations of the Asphalt Sites (“Corporate
Service”). To the extent Service Recipient hires
employees to perform any services covered in this Section 2.03,
Service Provider will no longer provide such
service.
|
(b)
|
Corporate
Service Charge = Corporate Fixed Fee + Corporate Outsourced Service
Charges
|
(i)
|
Charges
related to Service Provider’s internal costs will be charged at a fixed
rate of $166,000 (“Corporate Base
Fee”). Upon the termination of any service of this
Corporate Service, the fixed rate will be prorated for the portion of the
calendar month the service is
provided.
|
1)
|
Corporate
Fixed Fee = Sum of (Corporate Base Fee * Applicable Corporate Percentage *
Applicable (Month Calendar Days for Service/Month Total Calendar
Days))
|
2)
|
Each
service of the Corporate Service represents a percentage of the Corporate
Base Fee (“Corporate
Percentage”). For each service of the Corporate Service,
the Corporate Percentage is as shown below with sum equaling
100%:
|
a)
|
Inventory
Service equals 20%;
|
b)
|
Accounts
Payable and Accounting Data Transfer Service equals
22%;
|
c)
|
Permit
Service equals 22%;
|
d)
|
Utilities
Support equals 11%;
|
e)
|
Engineering
Service equals 9%, and;
|
f)
|
Health
Safety and Environmental Service equals
16%.
|
(ii)
|
Outsourced
Service charges related to Corporate Services (“Corporate Outsourced
Service Charges”) incurred by Service Provider in providing
Corporate Services to Service Recipient will be charged to Service
Recipient.
|
(c)
|
Inventory Reporting
Support
|
(i)
|
Service
Provider will provide inventory services, including, without limitation,
the reporting and calculation of inflows and outflows of volumes of
asphalt cement or other product at the Asphalt Sites (“Inventory
Service”). Inventory Service shall include, without
limitation, the preparation and delivery by Service Provider of the BAPCO
Weekly Inventory Report to Service Recipient consistent with historical
practice.; provided, however, to the
extent Service Recipient has access to the applicable SemMaterials
Software that generates such reporting, Service Provider will only provide
Inventory Service for up to thirty (30) days after such applicable
SemMaterials Software is available to Service
Recipient.
|
1)
|
Service
Provider will keep records and reports relating to the recording of the
volume of asphalt cement and other product received into and delivered
from the terminals and storage tanks at the Asphalt Sites and calculated
in accordance with historical practice. All such records and
reports for the prior month will be delivered to Service Recipient within
ten (10) days of the end of each
month.
|
(ii)
|
Service
Provider will not have access to Service Recipient’s accounting system
and, as such, will not directly make any accounting entry into Service
Recipient’s accounting system; provided, that
Service Provider will provide documentation for services in this Section 2.03
necessary for the making of such entries by Service
Recipient.
|
(d)
|
Accounts Payable and
Accounting Data Transfer
Support.
|
(i)
|
Service
Provider will provide accounts payable support for SemMaterials consistent
with historical practice and accounting data transfer support as outlined
in Exhibit
E of this Agreement (“Accounts Payable and
Accounting Data Transfer Service”) to the extent applicable given
certain limitations as outlined herein. Accounts payable
support will be limited to receiving invoices, coding invoices, and
delivering invoices to Service Recipient for
processing.
|
(ii)
|
Invoices
covering services that relate to the Asphalt Site up to the Asphalt Site
Transfer Date will be coded to Service Recipient or Service Provider
consistent with historical practices. For invoices covering
services on and after the Asphalt Site Transfer Date all invoices will be
coded directly to Service Recipient. Any such invoices relating
to Service Recipient’s business will be sent directly to Service Recipient
for payment to such vendor.
|
(iii)
|
Service
Provider will not have access to Service Recipient’s accounting system and
as such will not directly make any accounting entry into Service
Recipient’s accounting systems; provided, that
Service Provider will provide Service Recipient appropriate documentation
to support accounting entries related to this service by Service
Recipient. Service Provider will not have access to Service
Recipient’s bank accounts and as such will not process payments for any
accounts payable.
|
(e)
|
Permit
Support.
|
(i)
|
Service
Provider will work in good faith with Service Recipient to transfer all
environmental, regulatory, and operating permits for the Asphalt Sites to
Service Recipient and its Affiliates to the extent permitted by
law. If a transfer is not permitted by law, Service Provider
and its Affiliates will work in good faith to have permits issued to
Service Recipient (“Permit
Service”) by the applicable
agency.
|
(ii)
|
Service
Recipient acknowledges that the transfer of permits is dependent on
regulatory actions and is not in the control of Service
Provider.
|
(f)
|
Utilities
Support.
|
(i)
|
Service
Provider will support and cooperate in good faith with Service Recipient
to transfer utilities associated with Asphalt Transferred Assets to
Service Recipient (“Utilities Support
Service”).
|
(g)
|
Engineering
Support.
|
(i)
|
Service
Provider will provide engineering support for operations associated with
the Asphalt Sites (“Engineering
Service”).
|
(h)
|
Health Safety and
Environmental Support.
|
(i)
|
Service
Provider will provide health, safety, and environmental support for
operations associated with the Asphalt Sites (“Health Safety and
Environmental Service”).
|
Section
2.04 Utilities.
(a)
|
The
Parties will negotiate in good faith regarding the transfer of utilities
including deposits that may be posted with a Utility Service Provider for
such utilities. In some instances Service Provider and Service
Recipient may determine the best course of action will be for Service
Provider to terminate utility service rather than transfer the utility
service to the Service Recipient. To the extent applicable,
during and after the transfer of utilities, each Party will appropriately
reimburse the other Party for any utilities paid on its
behalf. The transfer of utilities for Asphalt Sites may occur
on different dates, the date the utility is transferred for an Asphalt
Site or Asphalt Sites will be the date the utility or utilities are
transferred for that site or sites (“Utility Transfer
Date”).
|
(i)
|
Service
Recipient acknowledges that Service Provider will take into account the
full financial impact to transition utilities including pre-petition cure
amounts or claims which may impact if utilities will be transitioned
between the Parties.
|
(b)
|
Utilities
= Service Recipient Utilities – Service Provider Utilities + Prepaid
Utilities + Service Recipient Utility Deposit
Reimbursements
|
(i)
|
Prior
to the Utility Transfer Date, Service Provider will charge Service
Recipient utilities associated with an Asphalt Site where Service Provider
is no longer storing Existing Asphalt Inventory (“Service Recipient
Utilities”). Utilities will be allocated equally over
the calendar month and each Party will pay their portion of the utilities
prior to or after the Utility Transfer Date as
applicable.
|
(ii)
|
After
the Utility Transfer Date for each Asphalt Sites, Service Provider will
pay Service Recipient for utilities associated with any Asphalt Site where
Service Provider continues to store Existing Asphalt Inventory (“Service Provider
Utilities”) up to the Asphalt Site Transfer
Date. Utilities will be allocated equally over the calendar
month and Service Provider will pay their portion of the utilities prior
to Asphalt Site Transfer Date.
|
(iii)
|
If
as of the Utility Transfer Date the Service Provider has prepaid utilities
on account with Utility Service Provider (“Prepaid Utility
Service Provider”) and services with the Prepaid Utility Service
Provider are transferred to Service Recipient, Service Recipient will
reimburse Service Provider for any prepaid utilities. If
services with the Prepaid Utility Service Provider are not transferred to
Service Recipient, then Service Provider will terminate the service with
the Prepaid Utility Service Provider and collect any prepaid utilities
directly from the Prepaid Utility Service
Provider.
|
(iv)
|
To
the extent the Parties reach an agreement to transfer services with a
Utility Service Provider between the Parties, the Parties have agreed to
negotiate in good faith an arrangement for utility deposits to be repaid
to Service Provider over a time period (“Utility Deposit
Transition”) to avoid disruption of utility services and minimize
the liquidity impact to Service Recipient. For clarity, utility
deposits may be in the form of cash or letters of credit and may be posted
for an Asphalt Site or may cover multiple Asphalt Sites (“Asphalt Site
Deposit”). To the extent the Parties do not reach an
arrangement to transfer services with a Utility Service Provider then
Service Recipient will be solely responsible for providing any needed
deposit to Utility Service Provider to initiate service with a Utility
Service Provider. If any utility service is not being
transferred to Service Recipient or if any utility service is being
transferred but the deposits are not being transferred, Service Provider
will receive any applicable deposit refund per the arrangement Service
Provider has with the Utility Service
Provider.
|
1)
|
Parties
agreed to a time period of up to six calendar months to facilitate the
Utility Deposit Transition, to the extent the Parties reach an agreement
(“Utility
Deposit Transition Period”).
|
2)
|
The
Parties have further agreed that the aggregate Asphalt Site Deposit is not
expected to exceed $3,000,000 (“Aggregate
Deposits”). To the extent the actual aggregate deposits
exceed the Aggregate Deposits the Parties have agreed to negotiate in good
faith to find a solution for any amount exceeding the Aggregate Deposits
(“Additional
Aggregate Deposits”).
|
3)
|
If
Parties agree to a Utility Deposit Transition for an Asphalt Site Deposit,
the Asphalt Site Deposit will be reimbursed to the Service Provider
equally over the Deposit Transition Period calendar months remaining on
the Utility Transfer Date. To the extent there are Additional
Aggregate Deposits, the Asphalt Site Deposit will be reimbursed according
to the terms of the agreement reached by the Parties if
applicable. Collectively, all reimbursements for Utility
Deposit Transition are referred to as “Service Recipient
Utility Deposit
Reimbursements”.
|
Section
2.05 Administrative
Charge.
(a)
|
Service
Provider will add an administrative charge of 10% to all fixed fees under
this Exhibit
C beginning with the third calendar month from the Effective Date;
provided,
however,
such administrative charge will not exceed $20,000 per calendar
month. For clarity, there will be no administrative charge for
the first two calendar months from the Effective
Date.
|
(b)
|
Administrative
Charge is;
|
(i)
|
For
calendar month one and two, Administrative Charge =
$0.00;
|
(ii)
|
For
calendar months three and beyond Administrative Charge = Lessor of $20,000
or (.10 * (Operations Labor Fee + Corporate Fixed
Fee)).
|
Section
2.06 Payment of
Charges.
(a)
|
Services
outlined in this Exhibit C will
be invoiced monthly in accordance with Section 5 of
this Agreement.
|
Section
2.07 Amendment to
Exhibit.
(a)
|
Changes
to the Services provided under this Exhibit C must
be formalized as an amendment to this Exhibit C and
accepted in writing by the Parties.
|
EXHIBIT
D
SEMMATERIALS
SOFTWARE
ARTICLE
I. SOFTWARE TRANSFER, CHARGES,
AND TERMS.
Section
1.01 SemMaterials
Software.
(a)
|
Service
Recipient shall have the option (the “SemMaterials Software
Option”), to have the Service Provider Parties transfer any of the
asphalt front-office systems and related software licenses described below
(the “SemMaterials
Software”), to the extent permissible, to the Service Recipient
Parties.
|
(i)
|
SemMaterials
Software includes, without limitation, the
following:
|
1)
|
Right
Angle IV;
|
2)
|
BOL
Manager;
|
3)
|
Utility
Payments (replaced Pace);
|
4)
|
MSDGen
and its replacement; and
|
5)
|
BAPCO.
|
Section
1.02 Terms.
(a)
|
To
the extent permissible, any transfer of SemMaterials Software will be
pursuant to the following terms and
conditions:
|
(i)
|
SemMaterials
shall retain the SemMaterials Software in connection with the orderly wind
down of its operations;
|
(ii)
|
Promptly
after the date hereof, Service Recipient will notify SemMaterials if it is
aware of any SemMaterials Software that it wishes to assume and
SemMaterials will provide information as reasonably requested by Service
Recipient with respect to the SemMaterials Software, including (1) the
date on which SemMaterials will no longer need to use the SemMaterials
Software (the “Software Transfer
Date”), (2) the cure and any other payments required in connection
with the assumption and assignment of any contracts related to the
SemMaterials Software (the “Software Third Party
Contract”); and (3) the amount of any prepaid maintenance,
licensing or other costs related to the SemMaterials Software paid or to
be paid by the Service Provider Parties as of the Software Transfer Date
(the “Software
Transfer Costs”);
|
(iii)
|
To
exercise the SemMaterials Software Option, Service Recipient must deliver
written notice of such exercise to Service Provider no later than April
30, 2009 (the “Software Option
Deadline”). If Service Recipient exercises the
SemMaterials Software Option with respect to any Software Third Party
Contract, and if such Software Third Party Contract is assumed and
assigned, then Service Recipient will be solely responsible for any cure
or other payments required in connection with the assumption and
assignment of such Software Third Party Contract, regardless of when such
assumption and assignment occurs or when such payment is
due;
|
(iv)
|
Upon
receipt of written notice and payment from Service Recipient exercising
the SemMaterials Software Option, the Service Provider Parties shall
promptly file a motion with the Bankruptcy Court seeking to assume and
assign all identified Software Third Party Contracts free and clear of any
Liens; and
|
(v)
|
If
Service Recipient exercises the SemMaterials Software Option, then on the
Software Transfer Date, and subject to any restrictions on transfer,
SemMaterials, SMEP and certain of their Affiliates will execute and
deliver the agreement (the “SemMaterials Software
Transfer Agreement”) relating to the transfer of the SemMaterials
Software to the Service Recipient Parties and the Service Recipient
Parties shall pay to the Service Provider Parties an amount equal to the
Software Transfer Costs.
|
Section
1.03 General.
(a)
|
Service
Provider will not provide any data associated with Service Provider’s
SemMaterials operations. Service Provider will provide
documentation relating to any transferred Software Third Party Contract
and, if applicable, data associated with Service Recipient Business in the
provision of the services in Exhibit C of
this Agreement.
|
(b)
|
Service
Recipient is responsible for implementation of SemMaterials
Software. Upon request of Service Recipient, Service Provider
may provide implementation support to the extent Service Provider has
sufficient resources to provide services and Service Provider will advise
Service Recipient of the costs associated with such implementation
support.
|
(c)
|
To
the extent possible or practicable, Service Recipient will have usage
benefit of any SemMaterials Software for which it has exercised the
SemMaterials Software Option from the date of such election until such
SemMaterials Software is transferred to Service
Recipient. Usage benefit may be administered by Service
Provider if it is not practicable for Service Recipient to have direct
access.
|
EXHIBIT
E
DATA
TRANSFER SERVICES
ARTICLE
I. TERM AND
TERMINATION.
Section
1.01 Term. Subject
to earlier termination in accordance with the provisions of Section 1.02 of this
Exhibit E,
Service Provider may provide the Services in this Exhibit E for a
period of two (2) months, commencing on the Effective Date, or for such shorter
period as provided in this Exhibit
E. Parties may mutually agree to extend the term of this Exhibit E for up to
two additional one (1) month periods.
Section
1.02 Early
Termination. This Agreement may be terminated with respect to
the transition services in this Exhibit E in the
following cases:
(a)
|
by
Service Recipient upon not less than five (5) days’ prior written notice
to Service Provider with respect to all or any portion of the Services
provided to it by Service Provider; provided, however, that
the Parties may mutually agree in writing to shorten such notice period
prior to the termination of
Services;
|
(b)
|
by
Service Provider with respect to the Services provided to Service
Recipient upon not less than fifteen (15) days’ prior written notice to
Service Recipient in the event of a material breach by Service Recipient
of any term or provision of this Agreement, unless such breach has been
cured within five (5) days from receipt by Service Recipient of such
notice; provided, however; that
nonpayment of any Disputed Items that remain outstanding in accordance
with Section
5.2(b) of this Agreement shall not constitute a breach of this
Agreement;
|
(c)
|
by
Service Provider with respect to any Service outlined in this Exhibit E
provided to Service Recipient upon not less than fifteen (15) days’ prior
written notice to Service Recipient in the event Service Provider
experiences a loss of employees that results in Service Provider being
unable to fulfill any Service outlined in this Exhibit E;
provided,
however,
that Service Recipient and Service Provider can agree to a temporary
suspension, allow Service Provider to cover with other employees, allow
Service Provider five (5) days prior written notice if employees terminate
employment with no notice period to Service Provider, or allow Service
Provider to use Outsourced Service for Services rather than
termination; and
|
(d)
|
by
Service Provider and Service Recipient upon mutual
agreement.
|
ARTICLE
II. SERVICES PROVIDED AND
CHARGES.
Section
2.01 General.
(a)
|
Service
Provider will work in good faith with Service Recipient to transfer or
allow Service Recipient access to copy Service Recipient’s books, files,
and records (electronic and tangible) that are in the possession of
Service Provider to the extent allowed by law and to the extent it does
not jeopardize Service Provider’s own books, files, and
records.
|
(b)
|
Service
Provider will provide the Services relating to this Exhibit E under
applicable sections in Exhibits A,
B, and
C of this
Agreement.
|
(c)
|
If
applicable Services under Exhibits A,
B, and
C are
terminated and Services are still needed under this Exhibit E,
Parties will work together in good faith to negotiate a new arrangement
for Services.
|
EXHIBIT
F
DEFINED
TERMS
“Asphalt Site or Asphalt
Sites” means a site or sites associated with the Asphalt Transferred
Assets as defined in the Master Agreement.
“Agreement” has the
meaning given such term in the preamble.
“Applicable Law” means
(i) any law, statute, regulation, code, ordinance, license, decision, order,
writ, injunction, decision, directive, judgment, policy, or decree of any
Governmental Authority and any judicial or administrative interpretations
thereof, (ii) any agreement, concession or arrangement with any Governmental
Authority and (iii) any license, permit or compliance requirement by any
Governmental Authority, in each case applicable to either Party and as amended
or modified from time to time.
“Bankruptcy Cases”
means (i) the chapter 11 cases commenced by SemGroup and certain of its direct
and indirect subsidiaries (other than SemGroup Holdings) on July 22, 2008,
jointly administered under Case No. 08-11525 (BLS) and (ii) the chapter 11 case
commenced by SemGroup Holdings on October 22, 2008 under Case No. 08-12504
(BLS).
“Bankruptcy Court”
means the United States Bankruptcy Court for the District of Delaware or any
other court having jurisdiction over the Bankruptcy Cases from time to
time.
“Confidential
Information” has the meaning given such term in Section
10.
“Dispute Notice” has
the meaning given such term in Section
5.2(b).
“Disputed Items” has
the meaning given such term in Section
5.2(b).
“Effective Date” has
the meaning given such term in the preamble.
“Fixed Fee” means,
collectively, the Corporate Accounting Fixed Fee, the Property Tax Fixed Fee,
the IT Fixed Fee, the Crude Accounting Fixed Fee, the Accounts Payable Fixed
Fee, the Permit Fixed Fee and the Utilities Fixed Fee.
“Governmental
Authority” means any foreign or U.S. federal, state, regional, local or
municipal governmental body, agency, instrumentality, board, bureau, commission,
department, authority or entity established or controlled by a government or
subdivision thereof, including any legislative, administrative or judicial body,
or any person purporting to act therefor.
“Indemnification
Claim” has the meaning given such term in Section
9.4.
“Indemnitees” has the
meaning given such term in Section
9.1.
“Indemnitor” has the
meaning given such term in Section
9.1.
“Labor Cost” means
fully loaded salary, for full and part time employees of Service Provider
providing Services under this Agreement. Fully loaded salary for
employees whose compensation is based on an annual salary will be their base
salary plus loading of 50%. Fully loaded salary for employees who are
paid on an hourly basis will be their applicable hourly rate times the
applicable hours worked up to 40 hours with loading of 50% plus any overtime
hours times the applicable hourly rate with loading of 10%.
“Liabilities” means
any obligation, liability, charge, deficiency, assessment, interest, penalty,
judgment, award, cost or expense of any kind (including reasonable attorneys’
fees, other fees, court costs and other disbursements). The term also
includes any liability that directly or indirectly arises out of or is related
to any claim, proceeding, judgment, settlement or judicial or administrative
order made or commenced by any third party or Governmental
Authority.
“Master Agreement” has
the meaning given such term in the recitals.
“Month Calendar Days for
Service” means the total calendar days the applicable Service was
provided in the applicable month.
“Monthly Statement”
has the meaning given such term in Section
5.2(a).
“Month Total Calendar
Days” means the total calendar days in an applicable month.
“Outsourced Service”
has the meaning given such term in Section
2(b).
“Party” and “Parties” has the
meaning given such terms in the preamble.
“Referee” has the
meaning given such term in Section
5.2(b).
“Resolution Period”
has the meaning given such term in Section
5.2(b).
“Service Fees” has the
meaning given such term in Section
5.2(a).
“Service Provider” has
the meaning given such term in the preamble.
“Service Provider
Business” has the meaning given such term in the recitals.
“Service Provider
Parties” shall mean the “SemGroup Parties” as defined in the Master
Agreement.
“Service Recipient”
has the meaning given such term in the preamble.
“Service Recipient
Business” has the meaning given such term in the recitals.
“Service Recipient
Parties” shall mean the “SGLP Parties” as defined in the Master
Agreement.
“Service Records” has
the meaning given such term in Section
5.2(c).
“Services” has the
meaning given such term in the recitals.
“Term” has the meaning
given such term in Section
4.1.
“Utility Service
Provider” means a company which provides utility services to Asphalt
Sites.
EXHIBIT
A, SCHEDULE 2.05(a)

EXHIBIT
A, SCHEDULE 2.05(b)
Artist
last
|
First
|
Title
|
Media
|
Size
|
Gallery/Gallery
Number
|
Location
|
Description
|
Xxxxxx
|
Xxx
|
Sunday
Morning
|
Mixed
Media on Paper
|
16x36
|
Xxxx
Xxxx Galleries/ LA0116
|
NE
Map storage/copy room
|
|
Xxxxxxxxx
|
Xxxxxxxx
|
Moment
at the Pond 17 #70906
|
Oil
on Canvas
|
60x48
|
#70906
|
Xxxxx
Xxxx'x office
|
|
Xxxxxx
|
Xxxxxxx
|
Xxxx
Light
|
Oil
on Panel
|
15
7/8 x 54
|
Main
Lobby, facing south
|
||
Xxxxxx
|
Xxxxxx
|
Sunshine
Shining, 2007
|
Painting
Mixed Media
|
56x56
|
M.A.
Xxxxx Gallery/ 13014-7
|
Hall
west of lobby
|
yellow
canvas - abstract Large canvas, yellow with abstract in
center
|
Judge
|
Xxxxxxx
|
Xxxxx
24
|
18
x 36
|
Xxxx
Xxxx Galleries/ HJ-44
|
Main
kitchen
|
textured
w/leave, greens and red
|
|
XxXxxxx
|
Xxxxx
|
children
in auto window
|
Photo
|
Exec.
Kitchen
|
Two
children looking in auto window
|
||
XxXxxxx
|
Xxxxx
|
Peshawar,
Pakistan 1984
|
Photo
|
Xxxxxxxx
Got Fine Art
|
Exec.
Kitchen
|
young
girl in red headscarf
|
|
XxXxxxx
|
Xxxxx
|
Steam
train Agra Uttar Pradesh Inde 1983
|
Photo
|
Xxxxxxxx
Got Fine Art
|
Exec.
Kitchen
|
Men
in turbans on train
|
|
Xxxxxxx
|
Jour
D'ete
|
Painting
on Paper
|
Xxxxx
Xxxx Galleries MI18J03-9
|
Kitchen
off Lobby
|
trees
along a river
|
||
Xxxxx
|
Xxxxxxxx
|
East
Avenue
|
Reimbursment
to Xxx Xxxxxxx
|
Executive
Board Room
|
Title
on back says "East Avenue"
|
||
Xxxxx
|
Xxxxxxxx
|
Salida
Park
|
Reimbursment
to Xxx Xxxxxxx
|
Executive
Board Room
|
Title
on back says "Salida Park"
|
||
Xxxxxxxxx
|
Xxxxx
|
A
Quiet Place
|
Oil
Painting
|
28
x 14
|
Central
Hall East end
|
||
Xxxxxxxxx
|
Xxxxx
|
Evening
Shadows of Autumn
|
Oil
Painting on Linen
|
24
x 48
|
Xxxxx
Xxxxxxxxx
|
Southeast
wall
|
|
Xxxxxxx
|
Xxxx
|
Exchange,
2007
|
Oil
on Linen
|
30x30
|
Xxxx
Xxxx Galleries/ RS5-07
|
Exec
kitchen
|
large
framed colorful abstract
|
Xxxxx
|
Xxx
|
Squaring
Stone
|
16
x 36
|
Xxxx
Xxxx Galleries/ RO1044
|
Xxxxx
xxxx, east of lobby
|
||
Xxxxx
|
Xxx
|
Squaring
Sunset
|
16
x 36
|
Xxxx
Xxxx Galleries/ RO0112
|
Xxxxx
xxxx, east of lobby
|
||
Striffolino
|
Xxxxxx
|
Xxxxx
Reflections II
|
72x72
|
Manitou
Galleries/ STRIFR35
|
Reception
Lobby
|
Yellow
abstract
|
|
Striffolino
|
Xxxxxx
|
Xxxxx
Reflections IV
|
72x72
|
Manitou
Galleries/ STRIFR37
|
Reception
Lobby
|
Red
abstract
|
|
Xxxxxxxxxxxx
|
Xxxx
|
Xxxxxxx,
0000
|
Xxxxx
Glass
|
25.25
x 15.25
|
Main
Lobby
|
||
Unavailable
|
no
tag
|
Japanese
Letter
|
Executive
Board Room
|
Framed
Japanese letter
|
|||
Xxxxxxx
|
Xxxxxx
|
Bridal
Currency, Mawskawin People, Irian Jaya, Indonesia, 19th
Century
|
Stone
|
22"
|
Exec.
Board Room
|
||
Xxxxxxx
|
Xxxxxx
|
Bridal
Currency, Mawskawin People, Irian Jaya, Indonesia, 19th
Century
|
Stone
|
23"
|
Exec.
Board Room
|
||
Xxxxxxx
|
Xxxxxx
|
Bridal
Currency, Mawskawin People, Irian Jaya, Indonesia, 19th
Century
|
Stone
|
29"
|
Exec.
Board Room
|
||
Xxxxxxx
|
Xxxxxx
|
Tantric
Lingam - Privacy Screen
|
Wood
(?)
|
Primitive
Art Works
|
Board
Room (?)
|
||
Xxxxxxx
|
Xxxxxx
|
Tantric
Lingam - Privacy Screen
|
Wood
(?)
|
Primitive
Art Works
|
Board
Room (?)
|
EXHIBIT
C, SCHEDULE 2.02
